Custody

Often, the most difficult issues to resolve in a divorce are issues involving children, including: who has the decision-making authority, visitation rights, time spent with each parent, and more. Protecting your parental rights could depend on the legal counsel you choose to represent you.

NOTICE: None of the information provided below constitutes legal advice. To obtain legal advice, please consult with a family law attorney.

Q. Before there is a court order, which parent has custody?

A. Both parents are the joint natural guardians of their children under 18 years of age and are jointly and severally charged with the child’s support, care, nurture, welfare and education. They have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child’s custody.

Q. What is “legal” custody?

A. The concept of “custody” includes both “legal” and “physical” custody, described below.

Q. What is physical custody?

A. Legal custody gives that person the rights and obligation to make long-range decisions involving education, religious training, discipline, medical care and other matters of major significance concerning a child’s life and welfare.

A. Joint legal custody means that both parents have an equal voice in making legal custody decisions, and neither parent’s rights are superior to the other.

A. Physical custody means that person has the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.

Q. What is custody?

Q. What is joint or shared physical custody?

A. Joint physical custody is in reality “shared” or “divided” custody. Shared physical custody may, but need not, be on a 50-50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights. Note that this is NOT the definition of “shared custody” used in computing child support.

Q. What is “joint” legal custody?

Q. What standard is used by the court in making a custody decision?

A. In any child custody case, the most important concern is the best interest of the child. Because of the unique character of each case and the subjective nature of evaluations and decisions that must be made, creating a set formula or equation in child custody matters is virtually impossible. The best interest of the child is the ultimate objective to which all other factors are considered.

Q. What factors are considered in determining the best interests of the child?

A. Because of the unique character of each case, there is no one complete list of factors determining the best interest of the child. However, the following lists factors culled from Maryland cases which courts consider in making this determination:

  • Fitness of parents

  • Character and reputation of parties

  • Desire of parents and agreements between parties

  • Potentiality of maintaining natural family relations

  • Preference of the child

  • Material opportunities affecting the future life of the child

  • Age, health and sex of the child

  • Residences of the parents and opportunities for visitation; or geographic proximity of parental homes

  • Length of child’s separation from parent

  • Prior voluntary abandonment or surrender.

Additional factors, especially important when considering joint custody, are:

  • Capacity of parents to communicate and reach shared decisions affecting child’s welfare

  • Willingness of parents to share custody

  • Relationship between child and each parent

  • Potential disruption of child’s social and school life

  • Demands of parental employment

  • Sincerity of parent’s request

  • Financial status of parents

  • Benefit to parents.

Q. How important is the ability of parents to communicate with one another?

A. The most important factor in deciding joint legal custody is the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare. Joint custody should not be awarded in the absence of a record of mature conduct on the part of the parents demonstrating an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for effective communication in the future.

Q. To have joint custody must the parents agree about everything?

A. No. The parents do not need to agree on every aspect of parenting, but their views should not be so opposed or their opinions so inflexible as to foreshadow the probability of constant conflict and disagreement on important issues.

Q. What standard does a court apply in making a visitation schedule?

A. Visitation issues are judged by the same standard as other custody issues: the best interests of the child.

Q. Do mothers have an advantage in custody proceedings?

A. According to the law, legal preference for awarding custody to mothers was abolished by courts and by the state many years ago; mothers should not have any advantage just because of the fact that they are the mother of the child. However in reality, mothers are awarded custody far more often than fathers; this could be because the maternal preference still survives in the minds of judges, or it could be because the primary caretakers are more often mothers than fathers.

Q. Does sexual orientation of a parent matter?

A. Sexual orientation may be considered in making a custody decision only if the minor child is actually harmed by it. This puts sexual orientation in the same category as many other behavior, including adultery and religious practices.